1. Lobbying

1.1 How can an association like ERA successfully lobby in your country to maintain a friendly regulatory environment?

Set up meetings and maintain regular contact with the Australian Direct Marketers Association (ADMA) (national industry body) and the Australian Competition & Consumer Commission (ACCC) (government regulatory authority).E-Commerce (and it's different sectors as M-Commerce, T-Commerce, etc.,) is currently a hot topic in our country. Several discussion tables attended by the representatives of the competent Ministries and the branch associations have been opened. ERA should participate — if it does not so already — in order to bring up the topics of primary interest. Take also note that regular lobbying is not yet officially organized in Italy, although this is coming up.

2. Laws and Regulations

2.1 Are any forms of direct response marketing prohibited in your country?

YES. TV auctions are not permitted. This ban might be considered as relevant for auctions on the Net as well.

2.2 What are the major restrictions in your country on direct response marketing, which sellers should be aware of?

Most of the EU-Directives are implemented and apply. Relevant for direct marketing: the TV & Broadcasting Directives (no. 552/1989 and 36/1997), the Directives concerning contracts away from business premises (no. 577/1985) and distance sales (no. 7/1997). Furthermore Law by Decree no. 114/1998 applies, which implies that several aspects of direct marketing require filing applications for authorizations of local or central administrations.

2.3 Are there any laws or regulations pending in your country that could have an impact on direct response marketing?

New regulation of TV and Radio advertising,
Implementation of the E-Commerce Directive (no. 31/2000),
New regulation of sweepstakes and premium sales

2.4 Identify any governmental or regulatory agencies charged with regulating the direct selling industry in your country and the business sector(s) they regulate.

• Authority for market and competition (competent on control of misleading advertising in all sectors),
• Special Authority in charge of personal data protection (has already issued specific guidelines for collecting and handling of personal data in the direct marketing sector, has also shown critical attitude towards the use of cookies,
• Authority for Communications is currently proposing a draft of a new Regulation of TV and Radio advertising,
• Institute of Self-Regulation in Advertising enforces through a special code correct behavior and fair practices,
• Several other ethic codes or guidelines issued by the associations of the Direct Marketing or Distance Sales companies, IS Providers, TV companies

2.5 What are the current hot issues among regulators and enforcement agencies in your country that could have an impact on direct response marketers?

Data protection, E-Commerce, TV and Broadcasting

2.5 Explain briefly what types of penalties may be imposed on marketers by these agencies for violating the laws.

• Authority for market and competition (misleading advertising): issues temporary desist orders, prohibits a campaign or orders to stop it - if already running - and to eliminate its effects (e.g. through corrective ads), in cases of non compliance may apply criminal sanctions (imprisonment up to 3 months) as well as fines (up to 5.000.000 It. Lire) on advertisers and / or agencies and fines (from 2.000.000 up to 5.000.000 It. Lire) on media companies,
• Authority in charge of personal data protection: fines (from 1.000.000 to 6.000.000 Italian Lire) as well as criminal sanctions (imprisonment up to two years),
• Authority for Communications (TV and Radio advertising): fines as well as suspension or withdrawal of broadcasting license),
• Institute of Self-Regulation in Advertising (the Jury): ascertains violations of the code, issues desist orders and publishes its decisions in the industry's newsletter or on the newspapers (in cases of not compliance with the Jury's decisions)

2.6 Can a company directly sue a competitor for false or deceptive advertising and, if so, what are the penalties if such a suit is successful?

YES. A company can bring a competitor either before the above mentioned Authorities or sue it before an ordinary Court. Action is given under the local civil code (article 2598 containing provisions against "acts of unfair competition") and claims for damages are possible, which must be substantiated by the claimant (N.B.: consider that's not possible to ask for "punitive damages" as US rules and jurisprudence allow). Temporary injunctions can be asked and issued by the judge in order to stop the performance of a campaign while the suit is pending.

2.7 Does your country recognize the concept of "class actions" whereby a law firm can represent all consumers within a particular "class" and sue a marketer for false or deceptive advertising? If so, what are the penalties if such a suit is successful?

NO. Not in a way as it's possible in the US system. In some cases (e.g. misleading ad) action of consumer protection associations is admitted.

3. Consumer Privacy Issues

3.1 What is the current law in your country relating to privacy of personal information?

Through Law n° 675 dated 31.12.1996 Italy has implemented the EU-Directive no. 95/46/ EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and to the free movement of such data.

3.2 Does the law distinguish between information collected on the Internet and information collected through other marketing methods, e.g., by telephone or by mail?

No.

3.3 Does the law distinguish between different types of personal information, e.g., name and address vs. financial information such as consumer credit card numbers? If so, how are they distinguished? What restrictions exist on the transfer of credit card or bank account information for marketing purposes?

 

The main - relevant - distinctions is between:

• "personal data", i.e. any information relating to natural or legal person, bodies associations that are or can be identified, even indirectly, by reference to any other information including a personal identification number, and
• "sensitive data", i.e. age, sex, health, religious or political opinions. Banks and companies performing financial services are not exempted from collecting and handling personal data only with the specific consent of the data subject.

3.4 Does your country require "opt in" or "opt out" as the method for the consumer to grant consent to disclosure of their personal information?

 

According to the local rules:

• the personal data subject must be preliminarily informed either orally or in writing, as to: (a) the purposes and modalities of the processing for which the data are intended, (b) the categories to which the data can be communicated, (c) the area within which the data may be disseminated.
• the communication and dissemination of personal data is allowed only with the person's express consent, unless such data are extracted from public registers, lists, documents or records, which are publicly available.

4. Specific Marketing Methods

The following marketing methods are currently under scrutiny in some countries, e.g., the United States. The discussion below indicates the extent to which such marketing methods are scrutinized in the reporting country, and if so, what legal restrictions apply:

4.1 Free Trial Offers and Free to Pay Conversion Offers. A marketing plan whereby the consumer accepts an offer to try a product or service free of charge for a specified time period, e.g., 30 days, prior to purchasing. At the end of the trial period, the consumer is automatically charged or billed for the product or service (usually on a credit card), unless he or she takes affirmative action to cancel.

• Provisions on misleading advertising always apply,
• Special prescriptions concerning delivery of unsolicited goods or services must be taken into due account,
• Ruling of contracts concluded away from business premises and of distance sales may become relevant,
• Correct consumer information must always be granted

4.2 Continuity Plan Offers. A marketing plan whereby the consumer agrees to receive periodic shipments of products or services unless and until the consumer affirmatively declines a periodic shipment or cancels his participation in the plan. The consumer is billed for each shipment of product or service.

See point 4.1. above, EU norms have to be considered as well as implementing statute laws

4.3 Automatic Renewal Offers. Generally a feature in a subscription or club membership offer whereby the subscription or membership is automatically renewed at the end of the initial term and each subsequent term unless the consumer affirmatively cancels.

Again, see point 4.1. and 4.2. above

4.4 Revenue Enhancement Programs. Also known as an "up-sell" offer, this marketing method presents to a consumer multiple product offers from different marketers on one telemarketing call. Typically, the consumer agrees to the first offer and provides their credit card number. The telemarketer then "up-sell" the consumer with additional offers. If the consumer accepts the additional offers, the consumer's credit card number is provided to the other marketers.

This system would need a careful check of the handling's details, some aspects could result as not complying with local ruling. The information and consent required by data protection law may not be given or extended in an open way.

5. Specific Product Categories

5.1 What special laws or regulations apply in your country to the direct marketing of products or services in the following categories:

5.1.1 Dietary supplements

• EU-Directive no. 398/1989 (as amended by Directive no. 41/1999),
• Law by Decree no. 111/1992 (implementing said Directive),
• Article 23/bis of the Self-Regulation Code, with special provisions for advertising and labeling

5.1.2 Diet/Weight Loss products

see above point 5.1.1.

5.1.3 Drugs

• Law by Decree no. 539/1992 (specifies products involved),
• Law by Decree no. 541/1992, as amended by Laws no.507 /1999, article 92, and no. 388/2000, article 85 (with special provisions and limitations for advertising and labeling),
• Article 25 of the Self-Regulation Code

5.1.4 Electro-muscle stimulators

• Law no. 36/2001 (with provisions on consumer information and safety instructions)
• Law no. 126/1991 (consumer information),
• Article 12 of the Self-Regulation Code

5.1.5 Health and fitness products

• see above point 5.1.3.,
• Articles 12, 24 and 25 of the Self-Regulation Code

5.1.6 Beauty products

• Law no. 713/1986 (as amended through Law by Decree no.126/1997),
• EU-Directives no. 6/2000 and 11/2000,
• Article 23 and 24 of the Self-Regulation Code

5.1.7 Travel offers

• Law by Decree no. 11/1995,
• Article 28 of the Self-Regulation Code

5.1.8 Magazine subscriptions

• Law by Decree no. 170/2001,
• Laws by Decree no. 50/1992 (on contracts concluded away from business premises) and no 185/1999 (distance sales) may apply

6. Extended Liability

6.1 If direct response advertising is found to be false or misleading, what parties, in addition to the marketer making the offer, are liable?

Agencies and media companies

7. Advice to Foreign Marketers

7.1 What is the most important advice you would give to a marketer that wishes to market a product through direct selling in your country?

Consider that in Italy many aspects of trade and business are subject to control or authorization by public administration (central as well as local). Not only statute law, but also local regulations may become relevant.